Supreme Court New South Wales Medium Neutral Citation: SU v Commonwealth of Australia [2014] NSWSC 241 Hearing dates: 5 March 2014 Decision date: 19 March 2014 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) The defendants' notice of motion filed 27 August 2013 is dismissed. (2) Costs are reserved. Catchwords: PRACTICE AND PROCEDURE - application for summary dismissal - whether statement of claim should be summarily dismissed or proceed to trial - arguable case demonstrated; TORTS - false imprisonment/unlawful detention - whether it is arguable that detention of persons under the Crimes Act 1914 (Cth) in an adult correctional facility constitutes false imprisonment/unlawful detention where the minor persons are also detained as unlawful non-citizens under the Migration Act 1958 (Cth) - whether it is arguable that being held under a different form of custody rather than another form of custody can constitute false imprisonment/unlawful detention Legislation Cited: Bail Act 1978 (NSW), ss 4, 6, 14, 15, 17, 20 Crimes Act 1914 (Cth), ss 3W, 23C, 23F Crimes (Administration of Sentences) Act 1999 (NSW), ss 4, 72, 232, 233, 249, 250, 252, 252A Extradition (Foreign States) Act 1966 (Cth), ss 17, 18, 26 Federal Court of Australia Act 1976 (Cth), s 31A Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99 Mental Health (Criminal Procedure) Act 1990 (NSW), ss 24, 27 Migration Act 1958 (Cth), ss 5, 189, 196, 233C, 250 Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28 Cases Cited: Christie v Leachinsky [1947] AC 573 DPP v Carr [2002] NSWSC 194; (2002) 127 A Crim R 151 Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 Minister for Immigration and Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390; (2002) 125 FCR 249 O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 Re Esperalta [1987] VR 236 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 State of New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327 State of New South Wales v TD [2013] NSWCA 32; (2013) 83 NSWLR 566 State of New South Wales v Williamson [2011] NSWCA 183 Texts Cited: Carolyn Sappideen and Prue Vines, Fleming's Law of Torts (10th ed 2011, Lawbook Co) Category: Interlocutory applications Parties: SU bhnf BA (First Plaintiff) BS bhnf BA (Second Plaintiff) Commonwealth of Australia (First Defendant) Stephen Michael Vasquez (Second Defendant) Representation: Counsel: P Strickland SC/A Canceri (Plaintiffs) P Semmler QC/A Berger (Defendants) Solicitors: O'Brien Solicitors (Plaintiffs) Australian Government Solicitor (Defendants) File Number(s): 2012/283102 Publication restriction: Nil Judgment 1HER HONOUR: By amended notice of motion filed 27 August 2013, the first and second defendants seek firstly, an order pursuant to Part 14 r 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) that the whole of the amended statement of claim filed 11 June 2013 be struck out; and secondly, an order pursuant to Part 13 r 13.4(1)(b) of the Uniform Civil Procedure Rules that the whole of the amended statement of claim filed 11 June 2013 be struck out. 2The plaintiffs relied on two affidavits of Rebecca Dunlop affirmed 6 December 2013 and 25 February 2014. The defendants relied on the affidavit of Mark Goode sworn 15 February 2013, the affidavit of Anthony Peter Dixon sworn 18 December 2013 and the affidavit of Stephen Michael Vasquez sworn 31 October 2013. 3The first plaintiff is "SU". The second plaintiff is "BS". The first defendant is the Commonwealth of Australia. The second defendant is Stephen Michael Vasquez, a member of the Australian Federal Police. 4On 30 April 2013, the original statement of claim was struck out, with leave given to file an amended statement of claim. 5On 11 June 2013, the plaintiffs filed an amended statement of claim, pleading wrongful arrest/unlawful imprisonment. They are seeking compensatory damages, including aggravated damages and exemplary damages. Background facts 6For the purposes of this application, I have taken the plaintiffs' case at their highest and accept that should this matter proceed to trial some factual matters will be disputed. 7At the time these events referred to below occurred, both plaintiffs were minors. 8The plaintiffs were suspected crewmembers of "Suspected Illegal Entry Vessel 231" (the vessel). On 25 February 2011, a criminal investigation into the suspected crewmembers of the vessel began. On the same day, the Australian Customs and Border Protection Service intercepted the vessel. Members of the Australian Customs and Border Protection Service boarded the vessel and the occupants were transferred from the vessel onto the "Ocean Protector" customs vessel, where they were taken to a detention facility on Christmas Island for immigration processing and investigation. On 6 March 2011, they arrived at Christmas Island. 9On 8 March 2011, Department of Immigration and Citizenship (DIAC) officers interviewed the plaintiffs separately. The first plaintiff told officers his date of birth and also alleges that he provided officers with names, addresses and a contact phone number for family members living in Indonesia. The second plaintiff also told DIAC his date of birth and also alleges that he provided officers with names and addresses for family members living in Indonesia. It is alleged that DIAC officials contacted a family member of the first plaintiff, by phone, who informed DIAC that the first plaintiff was under 18 years of age. 10On 10 April 2011, Sally McDonald (a member of the Australian Federal Police) interviewed the first plaintiff where he told her that he was under 18 years of age. On the same day, Matthew Wilson (also a member of the Australian Federal Police) interviewed the second plaintiff and the second plaintiff told Mr Wilson that he was under 18 years of age. After these interviews both plaintiffs were transferred to Berrimah House in Darwin - an immigration detention facility for unaccompanied minors ("Northern Immigration Detention Centre"). 11During that time the plaintiffs were held in accordance with s 189 of the Migration Act 1958 (Cth) and as suspects in accordance with s 250 of the Migration Act. The pleading framework 12The amended statement of claim pleads: "27a. From approximately 10.15am on 30 June 2011 to approximately 2.30pm on 30 July 2011 the First and Second Plaintiffs were detained at the Surry Hills Police Station on Goulburn Street Sydney at the behest of the First and Second Defendants. ... Particulars of detention: i) On 30 June 2011 at approximately 10.15am the First Plaintiff was arrested by the Second Defendant. ii) On 30 June 2011 at approximately 10.15am the Second Plaintiff was arrested by the Second Defendant. iii) On 30 June 2011 the Second Defendant escorted the First and Second Plaintiff to the Charge Room at Sydney Police Centre. iv) At the request of the Second Defendant and/or another member of the AFP, Probationary Constable Chau Kwok, a member of the NSW Police Force, charged each of the First and Second Plaintiffs with an offence pursuant to s 233C of the Migration Act 1958 (Cth). v) On or around 30 June 2011 the First and Second Plaintiffs were detained in a police cell at the behest of the First and Second Defendants. ... 43. ... Particulars of unlawful detention i) By virtue of s 3W of the Crimes Act 1914 (Cth) the Second Defendant was required to serve the First and Second Plaintiffs with a summons as opposed to arresting and charging them. ii) The Second Defendant did not have reasonable grounds to suspect that an arrest was necessary to achieve a purpose referred to in s 3W(1)(b) Crimes Act 1914 (Cth). iii) There was no lawful basis for the First and Second Plaintiffs to be detained by the First and Second Defendants at the MRRC when the First and Second Plaintiff were persons under 18 years of age. iv) But for the arrest of the First and Second Plaintiffs by the Second Defendant, the First and Second Plaintiffs would have continued to be detained in a Children's Detention Facility." 13The events that give rise to the alleged false imprisonment occurred on 30 June 2011. The plaintiffs say that the result of the actions of the defendants gave rise to their false imprisonment and had severe consequences. They were both juveniles who were taken out of the Northern Immigration Detention Centre for juveniles and, by virtue of the arrest, the plaintiffs ended up being remanded in an adult correctional facility. The conditions each plaintiff faced in the adult correctional facility were a lot harsher than those faced when they were being kept at the Northern Immigration Detention Centre. 14On 1 July 2011, the plaintiffs were then taken to the Metropolitan Remand and Reception Centre at Silverwater Prison (MRRC) where they remained until the charges brought against them were finalised. 15On 8 December 2011 and 13 December 2011, the charges against the second plaintiff and first plaintiff respectively were discontinued and they were released back into immigration detention. On 21 December 2011, the plaintiffs were removed back to Indonesia. The test for summary judgment 16Rule 13.4(1) of the Uniform Civil Procedure Rules provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court. 17Rule 14.28(1) of the Uniform Civil Procedure Rules provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings; or thirdly, is otherwise an abuse of the process of the Court. 18Rule 14.28(2) of the Uniform Civil Procedure Rules provides that the Court may receive evidence on the hearing of an application for an order under subrule (1). The defendants relied upon evidence in this application. 19Recently, in O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71 the Court of Appeal applied the High Court decision of Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118. In Spencer, the High Court was concerned with s 31A(2) of the Federal Court of Australia Act 1976 (Cth) but the following principles are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the court to allow the action to go forward (at [54]). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success. 20Powers to summarily terminate proceedings must be exercised with exceptional caution (at [55]; see also French CJ and Gummow J at [24]). False imprisonment 21The plaintiffs claim that their period of detention in custody in Sydney from 10.15 am to 4.50 pm on 30 June 2011 was without lawful justification. Or to put it another way, they were falsely imprisoned. 22The liberty of an individual cannot be interfered with without valid authorisation. As Kirby J stated in Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [138] and [140]: "138 ... It is a fundamental principle of Australia's constitutional law that the executive may not interfere with the liberty of an individual without valid authorisation. In Re Bolton; Ex parte Beane... Deane J explained: 'The common law of Australia knows no lettre de cachet or executive warrant pursuant to which either citizen or alien can be deprived of his freedom by mere administrative decision or action. Any officer of the Commonwealth Executive who, without judicial warrant, purports to authorise or enforce the detention in custody of another person is acting lawfully only to the extent that his conduct is justified by clear statutory mandate ... It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the very fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny.' ... 140 ... A plaintiff who proves that his or her imprisonment was caused by the defendant therefore has a prima face case. At common law it is the defendant who must then show lawful justification for his or her actions." 23In Carolyn Sappideen and Prue Vines, Fleming's Law of Torts (10th ed 2011, Lawbook Co) at [2.80] the learned authors identify the elements of an action for false imprisonment as: "The action for false imprisonment protects the interest in freedom from physical restraint and coercion against the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either causing that person's confinement or preventing that person from leaving the place in which he or she is." 24It is convenient that I briefly refer to relevant provisions of the Migration Act. The Migration Act 25Section 5 sets out definitions. The relevant ones are "detain", "immigration detention" and "officer". 26"Detain" means: "(a) take into immigration detention; or (b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so." 27"Immigration detention" means: "(a) being in the company of, and restrained by: (i) an officer; or (ii) in relation to a particular detainee - another person directed by the Secretary to accompany and restrain the detainee; or (b) being held by, or on behalf of, an officer: (i) in a detention centre established under this Act; or (ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) in a police station or watch house; or (iv) ... (v) ... but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b)." [Sections 245F(8A) and 245F(9)(b) are not applicable here] 28"Officer" means: "... (d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or (e) a member of the police force of an external Territory; or ..." 29Section 189 relevantly reads: "189 Detention of unlawful non-citizens (1) If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person. ..." 30It is not in dispute that at the relevant period of time the plaintiffs were unlawful non-citizens. 31In Minister for Immigration and Multicultural and Indigenous Affairs v VFAD [2002] FCAFC 390; (2002) 125 FCR 249 the Full Federal Court explained the effect of s 189 where Black CJ, Sundberg and Weinberg JJ at [149] and [150] say: "149 ... In other words, it was submitted that the decision of the primary judge in the present case was flawed because it failed to take into account the fact that s 189 rendered the detention lawful irrespective of whether the detainee was an unlawful non-citizen. 150 ... '... An examination of the context of s 189 makes it clear that the word 'detain' in s 189 has the meaning given by the first limb of the definition of 'detain in s 5(1), namely to take into immigration detention. It is s 196 that provides for the keeping of such a person in immigration detention until one of the events referred to in s 196(1) occurs.' ..." 32And s 196 reads: "196 Duration of detention (1) An unlawful non-citizen detained under section 189 must be kept in immigration detention until: (a) he or she is removed from Australia under section 198 or 199; or (aa) an officer begins to deal with the non-citizen under subsection 198AD(3); or (b) he or she is deported under section 200; or (c) he or she is granted a visa. ..." 33While the plaintiffs accept that they were in lawful detention pursuant to s 189 of the Migration Act, they argue that they should have been detained at one place, the Northern Immigration Detention Centre, but they were in fact detained in custody in Sydney. According to the plaintiffs, unlawful detention occurs when they are detained at another place where they ought not be detained. The defendants' position is that the plaintiffs were at all relevant times lawfully detained. Custody in Sydney 34So far as the plaintiffs' custody in Sydney on 30 June 2011 is concerned, they allege that they were placed under arrest by Federal Police Officer Stephen Vasquez, the second defendant, at about 10.15 am in connection with an offence of aggravated people smuggling pursuant to s 233C(1) of the Migration Act. They say that they were thereafter detained until approximately 2.30 pm at the Surry Hills Police Station, Goulburn Street, Sydney, at the behest of the defendants. The plaintiffs assert as follows: (a) The Court Attendance Notice issued to each plaintiff states that the second defendant apprehended each of them at about 10.15 am on 30 June 2011; (b) The Field Arrest Form completed in respect of each plaintiff confirmed the time and date of their arrest and also confirmed that the second defendant was the person who effected the arrest; (c) NSW Police formally refused bail and brought the plaintiffs before a Local Court Magistrate to determine the issue of bail; (d) In the records of interview between the second defendant and the first plaintiff, the second defendant complies with his obligation under s 23F of the Crimes Act 1914 (Cth) to caution a person who is under arrest; (e) Arranging for the plaintiffs to be brought to a Police Station is consistent with an intention to place them under arrest for the purpose of investigation and the institution of proceedings; and (f) Consistent with his obligation under s 23C(3) of the Crimes Act (Cth), the second defendant brought each plaintiff before a Magistrate. Each plaintiff was refused bail. 35After the plaintiffs bail had been refused and they were returned to the Surry Hills Police Station at about 4.50 pm on 30 June 2011, the plaintiffs say that their period of false imprisonment was at an end. The plaintiffs were placed in the custody of officers of Corrective Services NSW and were transported in the custody of officers of Corrective Services NSW to the MRRC. 36It is the period of time from when the plaintiffs were arrested by the second defendant at 10.15 am on 30 June 2011 until they were bail refused and remanded in custody by Magistrate Huber at about 4.50 pm on the afternoon of 30 June 2011 that forms the basis of their claim of unlawful detention. [the relevant period]. 37Senior counsel for the plaintiffs referred to five propositions, which he seeks to make good to demonstrate that the plaintiffs have an arguable case. They are: (1) The plaintiffs were wrongfully arrested and the fact of arrest deprives them of their liberty. (2) An invalid purported arrest can result in false imprisonment. (3) As the plaintiffs were reasonably suspected of having committed a Commonwealth offence, the provisions of the Commonwealth Crimes Act are applicable, not the NSW State Acts. (4) Even though the plaintiffs were in lawful detention under the Migration Act because of the unlawful arrest they were under a different form of custody. (5) Unlawful imprisonment can arise as a result of being detained in the wrong place. 38Some of the arguments in relation to these propositions overlap. I shall deal with these propositions in turn. (1) Were the plaintiffs wrongly arrested and deprived of their liberty? 39The plaintiffs say that the offences that they were charged with were Commonwealth ones so; therefore, the Commonwealth legislation in relation to powers of arrest applies. I shall return to this topic at proposition (3). The plaintiffs submit that it is arguable, assuming they were detained by the defendant(s) upon reasonable suspicion of having committed an offence under s 233C(1) of the Migration Act, the defendants failed to comply with s 3W of the Crimes Act (Cth). The plaintiffs allege that their detention at the Surry Hills Police Station and the Central Local Court during the relevant period was without lawful justification. [the triable issue]. 40Section 3W of the Crimes Act (Cth) confers a power to arrest a person if certain preconditions are met. Intrinsic to the concept of "arrest" is the capacity of the arresting officer to detain the suspect against their will. An arrest is the critical first step in criminal proceedings against a suspected person. That suspected offence is then the subject of judicial investigation. If the plaintiffs were unlawfully arrested pursuant to s 3W, then their detention by that officer for that purpose (the purpose being to investigate the suspect in relation to a suspected offence) is also unlawful: Christie v Leachinsky [1947] AC 573 at 584-587. 41In short, the plaintiffs say that they should have been summonsed to appear in relation to the offences with which they were charged and they should not have been arrested and thus, they were wrongfully arrested. 42The Commonwealth says that the arrest of the plaintiffs did not deprive them of their liberty, because at that stage they had no liberty of which to be deprived (T15.49). The Commonwealth says that its source of the power to detain the plaintiffs for the relevant period was s 196 of the Migration Act or alternatively under two New South Wales Acts, namely ss 4(1)(d), 72, 232, 233, 249, 250, 252 and 252A of the Crimes (Administration of Sentences) Act 1999 (NSW) and ss 4, 6, 14, 15, 17 and 20 of the Bail Act 1978 (NSW). In response, the plaintiffs say this submission ignores the circumstances under which and the purpose for which they were actually detained during the relevant period. Both plaintiffs were arrested (ie detained) under s 3W of the Crimes Act (Cth) because the second defendant believed, on reasonable grounds, that they had committed offences under s 233C(1) of the Migration Act. 43The plaintiffs say that the onus is on Mr Vasquez to establish that he believed, on reasonable grounds, that proceedings by summons against each plaintiff would not achieve one or more of the purposes specified in s 3W(1)(b) of the Crimes Act (Cth). 44Section 3W of the Crimes Act (Cth) relevantly reads: "3W Power of arrest without warrant by constables (1) A constable may, without warrant, arrest a person for an offence if the constable believes on reasonable grounds that: (a) the person has committed or is committing the offence; and (b) proceedings by summons against the person would not achieve one or more of the following purposes: (i) ensuring the appearance of the person before a court in respect of the offence; (ii) preventing a repetition or continuation of the offence or the commission of another offence; (iii) preventing the concealment, loss or destruction of evidence relating to the offence; (iv) preventing harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence; (v) preventing the fabrication of evidence in respect of the offence; (vi) preserving the safety or welfare of the person." [Emphasis added.] 45To properly exercise powers of arrest under s 3W the constable has to satisfy two thresholds; namely both s 3W(1)(a) and (b). The police officer may have believed on reasonable grounds that the plaintiffs had committed an offence, so the first limb of the test, set out in s 3W(1)(a) is satisfied. It is arguable that the second limb in s 3W(1)(b) of the test was not satisfied. If both limbs of the test were not satisfied, the plaintiffs should have been summonsed to appear at Court. They should have not been arrested pursuant to s 3W of the Crimes Act (Cth). The plaintiffs' submission that they were wrongfully arrested pursuant to s 3W of the Crimes Act (Cth) is arguable. (2) An invalid purported arrest can result in imprisonment 46It is uncontroversial that an invalid arrest can result in false imprisonment. "False imprisonment is plainly one category of trespass to the person": see State of New South Wales v Williamson [2011] NSWCA 183 at [57]; Christie v Leachinsky [1947] AC 573 at 587-8; Johnstone v State of New South Wales [2010] NSWCA 70; (2010) 202 A Crim R 422 at [30], [39]. In State of New South Wales v Radford [2010] NSWCA 276; (2010) 79 NSWLR 327 Sackville AJA at [78] (Beazley and Macfarlan JJA agreeing). 47The plaintiffs also referred to DPP v Carr [2002] NSWSC 194; (2002) 127 A Crim R 151, where Smart AJ stated at [35]: "35 This Court in its appellate and trial divisions has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of him departing and there is no reason to believe that a summons will not be effective. Arrest is an additional punishment involving deprivation of freedom and frequently ignominy and fear. The consequences of the employment of the power of arrest unnecessarily and inappropriately and instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting the police. The pattern in this case is all too familiar. It is time that the statements of this Court were heeded." 48The proposition that the plaintiffs invalid purported arrest can result in false imprisonment is arguable. (3) The provisions of the Commonwealth Crimes Act are applicable, not the State Acts 49I have already addressed the provisions of s 3W of the Crimes Act (Cth) under proposition (1). Prior to being arrested, the plaintiffs were interviewed in Darwin by members of the Australian Federal Police. Mr Stephen Vasquez is a sworn officer of the Australian Federal Police located in Sydney. The plaintiffs allege that on 30 June 2011 they were arrested by him in connection of aggravated people smuggling pursuant to s 233C(1) of the Migration Act, a Commonwealth offence. 50The Commonwealth submitted that its source of the power to detain the plaintiffs for the relevant period was s 196 of the Migration Act; and alternately that the police officer was entitled to arrest the plaintiffs and hold them in detention in accordance with the New South Wales State Acts, namely ss 4(1)(d), 72, 232, 233, 249, 250, 252 and 252A of the Crimes (Administration of Sentences) Act and ss 4, 6, 14, 15, 17 and 20 of the Bail Act 1978 (NSW). In New South Wales the power of arrest without a warrant is set out in s 99 of the Law Enforcement (Powers and Responsibilities) Act. Section 99(1)(a) of the Law Enforcement (Powers and Responsibilities) Act may empower the Police to arrest the plaintiffs should it be held at trial that the State legislation is applicable. 51In circumstances where the plaintiffs were interviewed by the Federal Police, charged by a State Police Officer at the request of a Federal Police Officer in relation to a Commonwealth offence and arrested by Federal Police, it is arguable that the Commonwealth Crimes Act is applicable. (4) Different form of custody? 52The plaintiffs submit that the nature and purpose of their detention changed as a result of being arrested under s 3W of the Crimes Act (Cth). They were no longer unlawful non-citizens detained under s 196 of the Migration Act, but were persons detained because they were reasonably suspected of having committed a Commonwealth Offence. 53This argument was also put by the plaintiffs in another way: "... assuming at say midday on 30 June 2011, the plaintiffs had sought a writ of habeas corpus in the Supreme Court, would the Court have ordered the plaintiffs' release from custody?" 54The plaintiffs submitted that if the Supreme Court had of issued a writ of habeas corpus, the plaintiffs would have been released from custody and would not have been taken to an adult correctional facility. Rather, the plaintiffs would have been returned to immigration detention and if such a writ were issued, they would not have been transferred to an adult correctional facility. 55The plaintiffs referred to Re Esperalta [1987] VR 236. In Re Esperalta the brief facts are that it was alleged that on about 23 October 1979, the applicant committed a number of robberies and abductions in Spain and that he had been charged with those offences. Mr Esperalta was held in prison pursuant to a warrant issued by a Magistrate on 26 April 1984 under the Extradition (Foreign States) Act 1966 (Cth). Section 18(1) of that Act provided for a prisoner, who sought to assert that his detention was unlawful, to apply to a court for a writ of habeas corpus. The principal attack on the lawfulness of the detention turned on the argument that the Magistrate was not entitled to make this order, because the necessary conditions under s 17(6) of the Act were not complied with. 56Gobbo J determined that the material before the Magistrate did not fall within the meaning of the definition of admissible evidence under s 26(1) of the Extradition (Foreign States) Act. It followed that the condition necessary for the exercise of the power of committal by warrant by the Magistrate was not fulfilled and the detention under the Extradition (Foreign States) Act was unlawful. Gobbo J concluded: "In the ordinary course I would order that the writ of habeas corpus be made absolute, but, as it was indicated that the applicant was formally being held under the Immigration Act and will still be so held hereafter, I will simply order that he is no longer being detained by the Governor of Pentridge Prison under the warrant issued under the Extradition (Foreign States) Act 1966 of 26 April 1984. Order that applicant no longer be detained." 57As previously stated, it is accepted that the plaintiffs were being lawfully detained under s 189 of the Migration Act. But the plaintiffs argue that as the arrest is unlawful, they should not have been held under the provisions of the Crimes Act (Cth). It is my view that it is arguable that even though the plaintiffs were in lawful custody under the Migration Act, and they would have continued to be held at the Northern Immigration Detention Centre for juveniles in the Northern Territory because of the unlawful arrest made under s 3W of the Crimes Act (Cth), they were then placed under a different form of custody in Sydney. (5) Unlawful imprisonment can arise as a result of being detained in the wrong place 58The plaintiffs relied upon the State of New South Wales v TD [2013] NSWCA 32; (2013) 83 NSWLR 566 to support the proposition that unlawful imprisonment can arise as a result of being detained in the wrong place. The brief facts in State of New South Wales v TD are that TD was charged with a serious criminal offence, robbery with assault. There was an issue about her mental health, so there was a special hearing under the Mental Health (Criminal Procedure) Act 1990 (NSW) ("the Act"). A limiting term was set for that offence and TD was ordered to be detained at a female gaol, Mullawa. What happened next is that the Mental Health Review Tribunal determined she was suffering from a mental illness, and a second order was made about six weeks later. The second order was that TD was to be taken to and detained in a hospital. But in breach of that order, TD was in fact detained at Long Bay prison. The cell she was in was described as part of the Long Bay prison hospital, but it was not gazetted as a hospital. The argument was a technical one. The State of New South Wales said that TD could not complain of the place in which she was detained because she was deprived of her liberty one way or the other. The Court of Appeal held that argument was wrong and that the tort of unlawful imprisonment applied because TD was detained in the wrong place. 59The principal submission of the State in State of New South Wales v TD was that by the time the District Court had made an order under s 27(1) of the Act specifying the place of detention of TD, she had already been deprived of her liberty by virtue of an earlier order for her detention under s 24 of the Act. The State contended that in these circumstances her detention at a place other than that specified in the order under s 27(1) of the Act, while unlawful, did not deprive her of her liberty. As such, the State submitted that it was not liable for the tort of wrongful imprisonment. 60In rejecting that submission Basten JA in State of New South Wales v TD at [58], [61] and [62] explained: "[58] The circumstances of the present case bear a similarity to those of Cobbett v Grey [1850] 4 Exch 729; 154 ER 1409. The complaint upon which Mr Cobbett was successful was that the defendants 'compelled him to go from and out of a certain room in the Queen's Prison, called No 2, where he was of right lodged, to and along divers passages, &c, into another part of the prison more confined, dark and insalubrious, being part of the said Queen's Prison limited by law as a prison or place for the separate confinement of debtors remanded ... on the ground of fraud ...': at 729; 1409. The case did not turn on the difference in the conditions of confinement (or the company to be had in those conditions), but rather on the legal distinction between the liabilities to custody in the two parts of the prison. The claims for trespass and false imprisonment were upheld. ... [61] Thus, Lord Jauncey accepted the distinction drawn by Goddard LJ in Arbon between the conditions of imprisonment and the nature of the imprisonment: see also Collins v Downs (Supreme Court, Roden J, 14 December 1982, unreported). To be imprisoned in the wrong part of a prison, where there is strict classification, according to law, is a false imprisonment for which damages may be awarded. There is nothing in Ex Parte Hague which throws doubt upon that distinction: on the contrary, it was upheld. [62] The circumstances in respect of the respondent are somewhat stronger than those in Cobbett. This was not a case in which she was held in one part of a prison, rather than another. Rather, she was held in a prison when the law required that she be detained in a hospital. The fact that she may have been treated in the same way as she would have been in a hospital (as to which there was no material before the court) might affect the quantum of damages, but not the answer to the legal question." 61Likewise, Sackville AJA in State of New South Wales v TD at [106] stated: "[106] In the present case, the First Order provided for the respondent to be detained at Mulawa Correctional Centre. The Second Order provided that the respondent was to be detained in a hospital. The Second Order, insofar as it stipulated a hospital as the place of detention rather than a prison, clearly supplanted the First Order. Whatever the continuing effect of the First Order or the specification of Mulawa Correctional Centre as the place of detention, it could no longer justify the detention of the respondent in a prison. Accordingly, the respondent's detention in a prison, once the Second Order had come into effect, was unlawful. The unlawful detention concerned the nature of the respondent's imprisonment, not the conditions of her imprisonment within an institution to which she was lawfully confined. It follows that, in accordance with the authorities, the respondent established the elements of the tort of false imprisonment and the primary judge was correct so to hold." 62The Court of Appeal decided that an order entitling the State to deprive a person of his or her liberty did not justify detention in any place in the State. The lawfulness of the detention depended upon compliance with the terms of the order. The order made under s 27 required TD to be detained in a hospital. There was no order or authority justifying detention in a prison, which is where the respondent was ultimately detained. The mere fact that the respondent could and should have been detained in another place did not prevent the detention being unlawful. The necessary elements of the tort of unlawful imprisonment were made out: [4]-[5] (Bathurst CJ); [54], [64], [74]-[76] (Basten JA, Hoeben JA agreeing); [88], [93] (Barrett JA); and [106] (Sackville AJA). 63The Commonwealth submitted that State of New South Wales v TD can be distinguished from the plaintiffs' situation in these proceedings because the plaintiffs were detained under lawful authority at all times, due to the expansive definition of "immigration detention" set out in s 5 of the Migration Act. The Commonwealth contended that the plaintiffs were at all times in the company of, or restrained by an officer, which included a State or Commonwealth police officer; and were still in lawful detention when they were taken by such an officer into a prison to the police station. This argument may turn out to be a persuasive one once the facts surrounding the plaintiffs' custody in Sydney have been ascertained at trial. In my view, it is arguable that the plaintiffs were falsely imprisoned as a result of being detained while being held in custody in Sydney on 30 June 2011. 64The result is that senior counsel for the plaintiffs has made good his five propositions. It is my view that the plaintiffs have an arguable case for false imprisonment. Hence these proceedings for false imprisonment should not be summarily dismissed and they should proceed to trial. The defendants' notice of motion filed 27 August 2013 is dismissed. Costs are reserved. 65I note that senior counsel for the Commonwealth drew to this Court's attention paragraph 27(a) where a longer period of false imprisonment, than the relevant period namely 30 June 2011 is pleaded. Paragraph 27(a) of the amended statement of claim needs to be amended. The Court orders that: (1) The defendants' notice of motion filed 27 August 2013 is dismissed. (2) Costs are reserved. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2014